Mr. Martin J. Neville
Fanelli, Neville, Varian & Staker
Attorneys at Law
277 North Avenue
New Rochelle, New York 10801

Dear Mr. Neville:

This is in further response to your letter of July 17, concerning the
application of the Occupational Safety and Health Administration's (OSHA)
Hazard Communication Standard to the art materials industry.

As stated in your letter, the Hazard Communication Standard does not require
the Labeling of products subject to Labeling under Consumer Products Safety
Commission (CPSC) standards. The CPSC exemption applies only to labels;
employers must comply with all remaining provisions of the Hazard
Communication Standard.

The current scope of the Hazard Communication Standard is limited to
chemical manufacturers, importers and distributors who sell chemicals to
employers in Standard Industrial Classification (SIC) Codes 20-39.
Manufacturing employers must have and maintain material safety data sheets
for all hazardous chemicals used in their workplaces to which employees may
be exposed. The standard does not apply to "office workers" who encounter
hazardous chemicals in non-routine work situations. For example, an employee
who uses a solvent to clean a typewriter once or twice a year does not have
to be provided with a material safety data sheet.

The format and appearance of a material safety data sheet may be decided by
the preparer. The inclusion of the statement "OSHA opinion that a material
safety data sheet is not necessary for non-toxic products" may be misleading.
We suggest the following alternative language be considered; "This product
is not considered to be or contain hazardous chemicals based on evaluations
made by our company under the OSHA Hazard Communication Standard, reference
29 CFR 1910.1200."

Chemical manufacturers and importers are responsible for hazard
determinations and the development of material safety data sheets for
hazardous chemicals under the Hazard Communication Standard. Trade
associations would not be party to OSHA citations issued to specific
manufacturers for violations of the Hazard Communication Standard. Material
safety data sheets may be prepared for non-hazardous chemicals, however, care
must be taken to ensure that inapplicable generic warnings are not used on
such forms.

On August 24, 1987, a revised Hazard Communication Standard was published in
the Federal Register effectively expanding the scope of the standard's
coverage to include all employees exposed to hazardous chemicals. By May 23,
1988, remaining employers must have in place complete hazard communication
programs. The expanded rule will directly effect ACMI members. Members will
be required to create or obtain material safety data sheets for all hazardous
chemicals and transmit them to their customers along with or prior to
shipment.

Retail suppliers of chemicals are only required to provide a material safety
data sheet upon request from an employer covered by the standard. A retail
supplier must post a sign or otherwise inform commercial customers of the
availability of material safety data sheets. Additionally, chemical
manufacturers are not required to transmit material safety data sheet to
distributors who do not sell to commercial customers.

A cursory review of the ACMI's draft "Guidelines for Material Safety Data
Sheet" indicates that it should prove helpful to members using it. Since
most of the material in this document comes from the Hazard Communication
Standard we do not expect members using it correctly to be out of compliance
with the standard. We suggest, however, in view of the promulgation of the
expanded rule, that you consider making the necessary changes to reflect the
broadened coverage of the standard. We would be happy to review your
document again in more detail at that time.

OSHA would be glad to participate in an ACMI sponsored seminar by providing
a representative. If I can be of further assistance, please feel free to
contact me again.

I represent the Art and Craft Materials Institute, Inc. (ACMI) an
association of 80 member companies that certifies the health labeling of
member manufacturers' products to consumers. Recently, I contacted Mr. John
Martonic at OSHA's Washington headquarters to discuss several issues of
concern to the art material industry regarding the OSHA Hazard Communication
Regulation, 29 CFR 1910.1200 and particularly the Material Safety Data Sheet.
He suggested that I contact you.

ACMI certifies that art material products are either non-toxic or if toxic,
that appropriate health labeling appears on the product as required by the
Federal Hazardous Substances Act, (FHSA) 15 USC 1261 et seq. The Consumer
Product Safety Commission has recently advised that FHSA covers chronic
hazard labeling of art supplies and that ASTM D-4236, a voluntary standard
for chronic toxicity labeling of art supplies developed in 1983, is
consistent with FHSA for labeling chronic hazards (Ex. A).

Some background information relating to the ACMI Certification Program and
the regulatory context affecting art materials follows.

ACMI employs an independent toxicologist, Dr. Woodhall Stopford, M.D.,
affiliated with Duke University, and sponsors a Toxicological Advisory Board
consisting of three eminent toxicologists to review program procedures.
Formulas of art material products are submitted by members in confidence to
the toxicologist who reviews the formula and product size to determine the
appropriate category of required health labeling, e.g. non-toxic or acutely
and/or chronically toxic for foreseeable product use under FHSA and ASTM
D4236, a voluntary standard for chronic hazard labeling of art materials. He
has discretion to require the submission of MSDSs from suppliers to the
manufacturers and to conduct tests where he believes tests to be required. A
copy of the ACMI lists of certified products is enclosed as Exhibit B.

There is a Certification Committee of ACMI which includes representatives of
art product manufacturers, representatives of artists, representatives of art
educators and school officials. The Committee can submit questions to the
toxicologist and can approve the addition of new product categories to the
program.

ACMI led in the development of what is the first voluntary standard for
chronic toxicity labeling of consumer products, ASTM D-4236. At the time of
its development, under FHSA there were no standards in the sense of federal
regulation for chronic toxicity labeling of household or consumer products.
Parenthetically, the ASTM standard development project occurred at about the
same time the OSHA Hazardous ASTM Standard, similar to the OSHA Regulation,
is performance oriented. Under the ASTM Standard, literally thousands of art
product formulas have been evaluated from 1983 to the current date.

Notwithstanding the ASTM Standard, there has been public controversy
concerning the toxicity of art supplies over the last six years or so. Some
States have passed statutes relating to chronic hazard labeling of artists'
supplies and statutes relating to purchasing art materials for use in grades
K-6 and 7-12. Enclosed is a copy of the California, Oregon, Illinois,
Tennessee, Florida and Virginia H). In addition, there may be other recent
statutes passed that also apply, eg. "Proposition 65" in California (Ex. I).
Some of these State laws: require that MSDS forms be provided to State
Health Departments for art supply products, eg. Illinois.

In turn, there has been confusion in the industry regarding Material Safety
Data Sheets under the OSHA Regulation and State OSHA/"Right-to-Know" Laws.
Generally, the industry, SIC Code 39, is comprised of small companies.

There are some with annual sales in excess of $20 million but the vast
majority of art material manufacturers are companies whose sales may not
exceed that amount. They are generally limited in their staff. Some
companies have chemical expertise to a degree. Many may only have one or two
chemists. But the product lines of the companies are broad. A line of
artists paints may include many different colors. In addition a number of
member companies are foreign companies, some without domestic subsidiaries in
the United States.

As a result of the public controversy, customers of manufacturers are
demanding MSDSs for virtually any product that may be regarded as an art
material including paper, easels, etc.

Virtually all art material products are "mixtures" under the OSHA Regulation
definition.

In an effort to provide assistance to our members, we would appreciate
OSHA's advice, or suggestions as to several legal questions and also OSHA's
recommendations regarding our draft MSDS guidelines.

I. OSHA Regulation - Coverage of Art Material Products

Art material products are marketed either to the schools or children (if
children's products) or to commercial or professional artists or to
crafts-persons or to hobbyists. They are not generally used in an industrial
environment nor are they generally used in manufacturing operations. It is
possible that some customers may use some art materials products in
industrial or manufacturing operations but the industry has no knowledge of
it, if it is true, with some limited exceptions as indicated under Section
IV.

The products are packaged as consumer products and shipped to distributors
for resale to retailers and ultimately to consumers. Packages may include
multiple products, eg. a box of differently colored crayons, paints in tubes,
etc. The size of the product packages ranges from 1 ounce to one gallon,
although generally the gallon size is an exception.

The OSHA Hazard Communication Regulation, 1910.1200(b)(4) states:

"This section does not require labeling of the following chemicals:

(iv) Any consumer product or hazardous substance as those terms
are defined in the Consumer Product Safety Act (15 U.S.C. 2051 et seq.) and
Federal Hazardous Substances Act (15 U.S.C. 1261 et seq.) respectively, when
subject to a consumer product safety standard or labeling requirement of
those Acts, or regulations issued under those Acts by the Consumer Product
Safety Commission."

The art materials industry has always considered that its products were
subject to both cited statutes and recently the CPSC issued an advisory
opinion to the effect that art materials labeling is subject to acute and
chronic labeling requirements under FHSA.

The stated purpose of the OSHA regulation "is to ensure that the hazards of
all chemicals produced or imported by chemical manufacturers or importers are
evaluated, and that information concerning their hazards is transmitted to
affected employers and employees within the "manufacturing sector," 1910.1200
(a)(1). The last "manufacturing sector" appears to us to be the member
manufacturers' plants.

A "manufacturing purchaser" is defined in the regulation to mean "an
employer with a workplace classified in SIC Codes 20 through 39 who purchases
a hazardous chemical for use within that workplace, 1910.1200(c).

Customers of member companies of ACMI are not "manufacturing purchasers,"
with a few exceptions. There are some commercial purchasers who may purchase
in bulk and who repackage the products as consumer products under their own
name. In that case, an MSDS would clearly be required for a hazardous
product. Member companies for the most part sell to art supply distributors
- who in turn resell to schools, to retail art supply or stationary stores,
or to retail chains. Products in the program do not include industrial
coatings.

We recognize that some art material products may be that art material
product manufacturers' plants or factories are themselves subject to OSHA
regulations since they are in SIC Code 39. But it is not at all clear that
the OSHA Regulation requires "end-line" art material manufacturers to prepare
or provide MSDSs for their customers and ultimate consumers for products sold
to the general public and which may only be incidentally purchased by
"manufacturing purchasers" for the office environment at their plants for
office workers.

Manufacturers of these art material products will provide information in the
nature of MSDSs to their customers irrespective of whether the regulation
applies because the customers as for it and because the industry is committed
to provide information on the products and the safe use of their products.
Beyond that, some States have adopted art material labeling laws which
involve the review of MSDSs by State authorities as discussed above.

Does an art material product - packaged for consumer use -
require an MSDS under the OSHA Hazard Communication Regulation if the
product is only acquired incidentally by "manufacturing purchasers" in SIC
Codes 20-39 for office use? Does the OSHA Regulation require the preparation
of Material Safety Data Sheets at all for art material products?

Even if the regulation does not apply, art product manufacturers appear to
be subject to State OSHA and "Right-to-Know" laws which in some cases may
require MSDS preparation and art product manufacturers are providing MSDSs
for non-hazardous, as well as hazardous, art materials.

II. MSDS - Non-Toxic Products

Dr. Woodhall Stopford, ACMI's toxicologist, has advised that the vast
majority of art material products do not require an MSDS under the OSHA
Hazard Communication Regulation (Ex. J), even assuming that the Regulation is
applicable to art material products.

Can ACMI lawfully advise its members to prepare MSDSs in the form enclosed,
Ex. K, L, M, so that Section II of the form can contain a depiction of the
certification mark of the Institute, and the language as indicated, and if a
non-toxic product one with no hazardous chemical and "no physical hazard", a
statement that no MSDS is required by reason of the OSHA regulation? Please
refer to page 28 of the Guidelines. Other variants of this statement appear
in the draft "Guidelines."

If the MSDS form is used, manufacturers recognize that the form must be
completed as to all elements of required information.

III. MSDS - Products Considered Hazardous under FHSA, ASTM or the
OSHA Standard

Some art material products do present health or physical hazards of one kind
or another. There are some paints, solvents, etc. which present acute or
chronic health hazards or which may be flammable.

Can ACMI legally advise members to use MSDSs for hazardous art material
products, even if MSDSs are not required under the OSHA regulation? We
assume that it is permissible but would appreciate OSHA's guidance. A draft
MSDS incorporating the HL mark for which health warnings are required is also
enclosed (Ex. N). Also please refer to Guidelines page 29.

IV. Art Material Products Known To Be Used In Both School,
Household and Industrial Environments

There are some art material products used in the industrial environment as
well as in schools, household and studios. Some manufacturers sell
turpentine, for example, and as a solvent, it is known to have wide-spread
usage to include the industrial environment, although the turpentine used in
an industrial environment would probably not be purchased from an art
material product manufacturer but from some other supplier of industrial
products. The turpentine sold by art material manufacturers is generally of
a higher quality than industrial turpentines or what would be typically
available in a hardware store.

Does the OSHA Hazard Communication MSDS apply to these products irrespective
of the identity of the purchasers and ultimate users?

V. Guidelines for MSDS

ACMI has prepared in draft "Guidelines for MSDS" (Ex. 0) We regard this as a
first step in providing member companies with guidelines for satisfying the
various regulations, federal and state. Over time, we plan to expand it to
include additional information relevant to art material products. We will
seek to provide member companies with guidance to prepare MSDSs so that they
will be generally acceptable nationwide by taking into account state
standards that may be stricter than the federal standard.

We would also appreciate OSHA's comments on the draft guidelines. We
understand that OSHA has assisted other industries on similar projects. If
OSHA has any additional pertinent guidelines or explanations of the MSDS
regulations, they could also be included.

Should OSHA desire comments on the issue of extension of its Regulation to
other sectors which was one of the issues in United Steelworkers of America
v. Auchter, our industry would generally favor one single comprehensive MSDS
standard of widespread application and failing that, would urge OSHA to take
the lead to develop with the States a comprehensive document that explains
existing requirements of both the federal and state standards. The situation
is so complicated at present that it is difficult to advise a manufacturer
doing interstate business of his obligations in this area, even given
unlimited legal or technical resources, which our industry (and I am
confident many others) does not have. Hon. John T. Dunlop, former Secretary
of Labor, wrote in 1978:

"It is an open question as to how many regulations a business,
particularly one: of small or medium size, can absorb .... The country needs
to acquire a more realistic understanding of the limits to the degree to
which social change can be brought through legal compulsion .... Government
has more regulations on its plate than it can handle."

By virtue of our industry's active involvement in the development of the
chronic hazard labeling standard, we managed to obtain general uniformity for
the product label. If other industries are finding it difficult to comply
with all of the MSDS requirements, as we do, then OSHA should seek to
develop, with the States participation and perhaps industry as well, a
comprehensive Guideline in this area which no industry on its own could
afford to do. The present situation is an intolerable burden under the
interstate commerce clause for small business companies. Our small industry
"has more regulations on its plate than it can handle" in this area.

ACMI may consider sponsoring a seminar on the subject, and we would
appreciate participation by an appropriate OSHA representative. It is a
subject of continuing interest on the part of members and given the current
legislative and regulatory background, one that member companies find to be a
source of confusion.

We would be pleased to meet with appropriate OSHA staff to discuss this in
greater detail or to provide additional information. We look forward to an
opportunity to meet with you or your staff. Our toxicologist can also attend
if needed or be available for a conference telephone call.

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